Firing back with an adhesion contract

66 posts in this topic

Or perhaps your friend just got lucky? Simply because his tactic worked does not mean the “contract” was legal and/or would hold up in a court of law. He has no idea what would have happened if it had been put to the test in court.

True, it was not necessarily the contract.

It was clear that previous express consent was being revoked. The tricky part is that CRAs have immunity to report information about people and they do not need permission to do so.

So the CRA felt it could list a private phone number without any consequences. They would be disclosing the number and implicitly telling clients that it was ok to call, giving them express consent.

By revoking previous express consent, it would be a violation of TCPA each time the CRA told the number (giving implicit consent) and its clients called the number. The CRA cannot grant a consent it does not have and it was a reasonable expectation that the clients who paid for the credit report would use the information to call.

If the CRA really wanted to disclose the number, it had to inform clients that previous express consent had been revoked. It would render the number useless and subject those clients to a violation of TCPA each time they called. Every time they pulled a credit report they were informed it was not ok to call.

So deleting the number was the best option. And also, it is not clear if the contract had anything to do with it.

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Why would anyone want to attempt to opt-out of arbitration? Especially after a default, arbitration is your best friend.

Arbitration is the only leverage you have these days for any kind of aggressive credit repair.

I need to learn about arbitration. I dislike it based on old information because I think arbitrators are not accountable for their decisions as compared to judges where almost everything is public record and many OCs, JDBs and CAs bring a lot of business to those who rule in their favor, so the odds are stacked up against consumers from the start.

You seem to have a lot of experience in this area, so I guess I need to take a fresh look at the whole arbitration process.

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He has no idea what would have happened if it had been put to the test in court. ﻿

Most businesses don't want to test things in court when it is easier, read cheaper, to appease.Some may want to appear they are willing to fight to the end but in the end they usually fold.

Good point in case in personal dealings with my Papa Romeo Alpha. Something was removed and forgiven with no tax implications because Popa knew that any cost to fight would be expensive and his expectation of gain was pretty low. Everything was still inside of statute. He may have won if it really went to court who knows. I am sure for him it was just a business decision. Do I take a chance on losing XX,XXX in an attempt to gain X,XXX. Risk reward did not add up.

You need to give an offer that makes sense. If you agree to this I won't do this.

What the OP suggest in his original post is out there, it may work it may not. I would not do it. I feel like there are better ways to achieve the desired results.

With my Papa I laid a foundation of disputes and correspondence. Papa had a thick file on me. I sent him an ITS not asking for money but asking for Papa to delete his negative records, and make everything go away or I was ready to go to court and ask for money. Papa agreed he did not want to go to court with me. Papa is no more and he was the last of his type to exit my life. Prior to my ITS I had made Papa a prior an offer of cash if he would get out of my life. He said he would gladly accept my cash but he would stay in my life to the bitter end. Now he is out of my life for good now and I get to keep my cash.

I did agree with Papa that I would not tell all or even his real name. If you can't read between the lines you probably should not be playing this game.

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So﻿ the CRA f﻿elt it could list a private ph﻿one number without any conseq﻿uences. They would be disclosing the number and implicitly telling clients that it was ok to call, giving them express consent.﻿﻿

That is not true. Only the owner of a phone number and perhaps an authorized person can give consent to call a cell number. CRAs cannot and do not imply that consent simply by disclosing a number.

On 8/22/2018 at 9:42 PM, cjtx2 said:

By﻿ revoking previous express consent, it would be a violation of TCPA each time the CRA told the number (giving implicit consent) and its clients called the number. The C﻿RA cannot grant a consent it does not h﻿ave and it was a reasonable expectation that the clients who paid for the credit report would use the information to call.﻿﻿﻿

Not true. Consent is required to call a cell number and one may revoke that consent. Where in the TCPA is consent required to disclose a number?

On 8/22/2018 at 9:42 PM, cjtx2 said:

If th﻿﻿e﻿ CR﻿A really wanted to disclose the number, it had to inform clients that previous express consent had been revoked. It would render the number useless and subject those clients to a violation of TCPA each time they called. Every time﻿ they pulled a credit report they﻿ were informed it was not ok to call.﻿﻿

This begs the same question I previously asked Where does the TCPA require express consent to disclose a number?

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That is not true. Only the owner of a phone number and perhaps an authorized person can give consent to call a cell number. CRAs cannot and do not imply that consent simply by disclosing a number.

Not true. Consent is required to call a cell number and one may revoke that consent. Where in the TCPA is consent required to disclose a number?

This begs the same question I previously asked Where does the TCPA require express consent to disclose a number?

By listing a phone number, the CRAs are telling anyone who gets the credit report that they can use the information to contact you, even any phone numbers are fair game. JDBs and CAs pay for the information so there is a sense of entitlement. I know you can fight it, and they are supposed to produce written proof of consent if it gets to court, but why get into that if you did not authorize the CRA to disclose a private number in the first place? So no JDBs or CAs should be calling that number just because they were able to obtain it from the CRA

While TCPA does not prohibit disclosing a number per se, it gives you the right to revoke consent to call. So you can revoke consent to the CRAs, their agents, affiliates, associates, contractors, directors, business partners, and even their clients. Who is liable in case the clients act despite no consent? That is why the contract specifies that the CRA is ultimately responsible for violations. Why disclose a number they know is highly likely to be misused when they don't absolutely have to?

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This is OT, but I am just wondering why Experian gets away with disclosing an estimate of the date an item will be removed. That seems like a conclusion of law, and CRAs are supposed to disclose exactly what was reported to them; i.e; DOFD.

Experian was famous for changing the estimated day of removal to the last date the account was updated. Looks like they keep doing it. Some things don't change.

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If they call because they found your number on your credit report and use an automatic dialing system or leave a pre-recorded message, you have a claim against them but not the CRA.

Where does the TCPA say you can revoke consent to entities to which you never gave your number to in the first place?

In addition, it applies to those who make the calls. The CRA‘s do not make the calls. You are adding to the TCPA conditions that are not there.

You can revoke consent to anybody before or after they call you or even if they have no intention of ever calling you. There is no requirement that they obtained the number from you before. Once you make contact with someone, you can revoke consent for a given number, that's it. But you need an exhaustive list of all the people who may act on behalf of a CRA, including/especially their clients.

A CA or JDB may have found your number from some obscure skip tracer. The CRA probably got it from a furnisher, an inquiry or a public record. It does not matter where they got it from, You can contact them and revoke consent.

The expectation that someone may call the number that was disclosed as part of someone's contact info in a credit report is a reasonable consequence of such disclosure and it falls under the theory of vicarious liability.

Even if you disagree with everything else, once the CRA does not have consent to call, it is not unreasonable to request that if it chooses to disclose the number, it must disclose as well a statement where you explain in no uncertain terms that you are revoking consent to the CRA's clients. That is your right under FCRA to include a statement to clarify anything that may be misunderstood.

Such a statement makes the number useless or at least much less valuable for the CRA to include.

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You﻿ can rev﻿oke consent to anybody before or after they call you or even if they have no intention of ever calling you. There is no﻿ requirement that they obtained the number from you before. Once you make contact with someone, you can revoke consent for a given number, that's it.﻿ But you need an exhaustive list of all the people who may act on behalf of a CRA, including/especially their clients.﻿﻿﻿﻿

A CA or JDB may have found your number from s﻿ome obscure skip tracer. The CRA probably got i﻿t from a furnisher, an inquiry or a public record. It does not matter where they got it from, You can cont﻿act them and revok﻿e consent.﻿﻿﻿﻿

I never said that you can’t without consent to an entity to which you have provided your cell number. In fact, if you revoke your consent with the original creditor before it has placed your contract with another entity, chances are that new entity does not have consent to call you. Therefore you do not have to revoke consent with everyone that may be connected to the original creditor.

It most certainly does matter where a JDB gets your number. If you never gave your number to the OC, the JDB does not have express permission to call you. Therefore, you do not have to revoke your consent.

1 hour ago, cjtx2 said:

The﻿ expectation that someone may call the number that was disclosed as part of someone's contact info in a credit report is a reasonable consequence of such d﻿isclosure and it falls under the theory of vica﻿rious liability.﻿﻿

Under what theory? And what court has made it such a ruling in regard to credit reporting agencies and the TCPA?

1 hour ago, cjtx2 said:

Even﻿ if you disagree with everything else, once the CRA does not have consent to call, it is not unreasonable to request that if it chooses to disclose the number, it must disclose as well a statement where you explain in no uncertain terms that you are revoking consent t﻿o the C﻿﻿RA's

When do we give consent to CRAs? How does it make sense to revoke what you have not given?

What court has ruled that CRA’s are liable under the TCPA simply for listing phone numbers? You keep avoiding that question.

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When do we give consent to CRAs? How does it make sense to revoke what you have not given?

What court has ruled that CRA’s are liable under the TCPA simply for listing phone numbers? You keep avoiding that question.

There is nothing in TCPA limiting who you can revoke consent to. CRAs are just like any other business and they are not immune to TCPA.

It makes sense to revoke consent as a pre-emptive strike before you get a call. And it is perfectly legal. Not only you do not have to wait for them to produce some fake consent, but you actually have proof that any implicit/explicit previous consent was in fact revoked.

Otherwise, at least the first call gets a free pass. Have you ever heard something like "We will remove your number from our list, but it may take a few days to post, so you may receive other calls". Unless you make a serious threat of a lawsuit, you may end up receiving many more calls and the number is never added to their do not call list.

Of course CRAs are not in the business of calling people, so revoking consent to a CRA is not really aimed at them, but their clients. CRAs profit from selling personal information to unscrupulous JDBs and CAs. It is not unreasonable to expect that they will use those numbers to call people who never gave consent. And I assume the more personal info CRAs can provide, including more addresses and phone numbers, the more valuable the report is.

We are not talking about being liable just for listing the numbers. The issue here is for listing the numbers, after consent was revoked, knowing or reasonably expecting that they will be used without consent. They are not legally required to list phone numbers and there is no penalty for excluding them. It is a matter of profit for the CRAs, nothing else.

I have not found any caselaw yet, but I suspect they either settle or delete the numbers to avoid a judgment.

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There is nothing in TCPA limiting who you can revoke consent to. CRAs are just like any other business and they are not immune to TCPA.

It makes sense to revoke consent as a pre-emptive strike before you get a call. And it is perfectly legal. Not only you do not have to wait for them to produce some fake consent, but you actually have proof that any implicit/explicit previous consent was in fact revoked.

You still don't get it. You didn't provide your number to the CRAs. As a result, it is not necessary to revoke consent.

They are not immune from the TCPA if they call your cell with an ADS, leave a pre-recorded message, or if someone calls on their behalf using those methods.

1 hour ago, cjtx2 said:

Of course CRAs are not in the business of calling people, so revoking consent to a CRA is not really aimed at them, but their clients. CRAs profit from selling personal information to unscrupulous JDBs and CAs. It is not unreasonable to expect that they will use those numbers to call people who never gave consent. And I assume the more personal info CRAs can provide, including more addresses and phone numbers, the more valuable the report is.

You are placing a burden on CRAs that you have not proven is placed on them by law. It would your burden to prove that they must contact each of their clients reporting on your CR and convey the revocation.

So what if they sell personal information? You have proof that they credit reports containing phone numbers cost more? Your "assumption" means nothing in court. Even if it does cost more, that still doesn't make a CRA vicariously liable for calls made to you.

You buy a car from a car dealership. You run a red light and crash into another car. Is the dealership vicariously liable for your action simply because it reaped a benefit when it sold you the car?

1 hour ago, cjtx2 said:

We are not talking about being liable just for listing the numbers. The issue here is for listing the numbers, after consent was revoked, knowing or reasonably expecting that they will be used without consent. They are not legally required to list phone numbers and there is no penalty for excluding them. It is a matter of profit for the CRAs, nothing else.

Revoking consent has nothing to do with listing numbers. It's about initiating phone calls.

You really need to read up on vicarious liability. Agency relationship? That implies that a principal has control over the agent. CRAs have no control over their clients' actions. Authority? The clients don't call on behalf of CRAs. Ratification? The CRAs receive no benefits from clients' calls to debtors.

1 hour ago, cjtx2 said:

I have not found any caselaw yet, but I suspect they either settle or delete the numbers to avoid a judgment.

And there it is. Anyone who sends a letter such as you suggest is hoping for a deletion or money. If faced with a CRA in court, that person will lose.

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You really need to read up on vicarious liability. Agency relationship? That implies that a principal has control over the agent. CRAs have no control over their clients' actions. Authority? The clients don't call on behalf of CRAs. Ratification? The CRAs receive no benefits from clients' calls to debtors.

And there it is. Anyone who sends a letter such as you suggest is hoping for a deletion or money. If faced with a CRA in court, that person will lose.

Assuming you cannot make preempting notices to revoke consent, you can still add a statement to your credit report, which will be delivered to anybody who pulls your report, where you explain, redundantly, if you want, that just because your number is listed, there is no consent.

A CRA would rather delete than include your statement, even though it is perfectly legal and within your rights to clarify anything in your report that may be misconstrued. I seriously doubt a person will lose in court against a CRA.

When listing numbers, the CRA benefits from the actions of its clients, in this case illegal actions, which brings more business to the CRA. Just because the CRA may raise plausible deniablity as a defense, it does not mean they did not know what was the number going to be used for or that the defense would be sustained.

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Assuming﻿ you c﻿annot make preempting notices to revoke consent, you can still add a statement to your credit report, which will b﻿e﻿ delivered to anybody who pu﻿ll﻿s your report, where you explain, redundantly, if you want, that just because your number is listed, there is no consent.﻿﻿

Of course there is no consent just because the number is listed on your credit report. Neither a court nor the FCC has ever made such a ruling. Express consent must be given directly to an entity.

1 hour ago, cjtx2 said:

A CRA﻿﻿﻿ w﻿ould rather delete than incl﻿ude your statement, even though it ﻿is perfectly legal and withi﻿n y﻿our rights to c﻿la﻿rify a﻿n﻿﻿ything﻿﻿﻿﻿ in your report that m﻿ay be misconstrued. I seriousl﻿y doubt a﻿ person will lose in court against a CRA.﻿﻿﻿﻿﻿

That’s great if a CRA wants to delete. But, again, you are wasting your time by including a statement that you revoke consent to call the number. You would have to prove that including such a statement on your credit report constitutes written revocation due to the fact that it is not made directly to the entities involved.

1 hour ago, cjtx2 said:

When﻿ listi﻿ng numbers, the CRA benefits from the actions of its clients, in this case illegal actions, which brings more business to the CRA. Just because the CRA may raise plausible deniablity as a defense, it does not mean they did not know what was the number going to be used for or that the defense﻿ would be sustained.﻿﻿﻿

How exactly does it bring more business to a CRA?

A CRA’s is only responsibility is to make sure that information in a credit report is accurate. It can be said that a C RA knows that debt collectors such as JDB‘s report information in order to encourage consumers to pay debts. Yet, CRAs are not held liable for inaccurate information as long as they conduct a reasonable investigation. The purpose of the provided information makes no difference.

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That’s great if a CRA wants to delete. But, again, you are wasting your time by including a statement that you revoke consent to call the number. You would have to prove that including such a statement on your credit report constitutes written revocation due to the fact that it is not made directly to the entities involved.

The statute only requires that express consent must be given directly, as you said. I believe there is more flexibility in the way it is revoked and it comes down to whether the person making the call should have known that you had revoked consent. Just because you talk to someone else, there is no excuse to claim consent was still valid for another agent. You probably need to record the call to prove it. Same thing if you notify the company by any other means like mail, fax, email, etc. you have to prove that they received it.

A customer statement, even though useless for scoring purposes must be disclosed with the report. If the inquiries show that someone received a copy of your report, the fact that an unedited consumer statement was also attached are business records that must prove withdrawn consent was received.

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The statute only requires that express consent must be given directly, as you said. I believe there is more flexibility in the way it is revoked and it comes down to whether the person making the call should have known that you had revoked consent. Just because you talk to someone else, there is no excuse to claim consent was still valid for another agent. You probably need to record the call to prove it. Same thing if you notify the company by any other means like mail, fax, email, etc. you have to prove that they received it.

You "believe" there is more flexibility. Courts don't care about your belief. They want proof.

Yes, in some cases, revoking consent with one party revokes it with another. That's the case when you revoke consent with an OC. The consent would be revoked with any CA the OC hired and with a JDB to which the the OC might sell a debt after revocation. However, that's because the OC, collection agencies, and JDBs are connected by way of the account.

CRAs are not connected to the account. All they do is report it. They do not collect, act on behalf of the OC, or get paid if the debt is paid.

1 hour ago, cjtx2 said:

A customer statement, even though useless for scoring purposes must be disclosed with the report. If the inquiries show that someone received a copy of your report, the fact that an unedited consumer statement was also attached are business records that must prove withdrawn consent was received.

Before anything, you'd have to prove that a notice on your credit report constitutes revocation.

In another post, you mentioned about certain things being bad for an attorney's business. Well, if your current claims are true, it would be good for an attorney's business. So where are the attorneys raising those claims? If there are any, it must not be many because there are no court rulings to support what you say.

So why don't you contact some consumer attorneys and ask if you can revoke consent with other parties by placing a notice on your credit report. Then ask if CRAs are vicariously liable under the TCPA if any of their clients call your cell phone.